Fifth Circuit Blog

Friday, July 16, 2010

Sixth Circuit Approves of Variances Based on Fast-Track Disparity, Bringing Circuit Split On Issue to 3-3

If you handle illegal reentry cases, you're well aware of the circuit split over whether a court in a non-fast-track district may vary from the advisory Guidelines range to temper the disparity caused by the availability of such programs elsewhere. The Fifth, Ninth, and Eleventh Circuits have said no. The First and Third have said yes. Professor Berman now reports that the Sixth Circuit, with its decision in United States v. Camacho-Arellano, No. 07-5427 (June 16, 2010), has joined the ranks of the yay-sayers, bringing the split to an even 3-3. Here's Camacho-Arellano's take:

The [Fifth, Ninth, and Eleventh] circuits distinguished Kimbrough by reading it as authorizing district courts to vary based on disagreements with Guidelines policy, not based on disagreements with congressional policy. Gomez-Herrera, 523 F.3d at 559; Gonzalez-Zotelo, 556 F.3d at 740–41; Vega-Castillo, 540 F.3d at 1239. We find this distinction unpersuasive. First, the idea that Congress believes the disparity is warranted derives from the PROTECT Act, but the Act “neither forbids nor discourages the use of a particular sentencing rationale, and it says nothing about a district court’s discretion to deviate from the guidelines based on fast-track disparity.” Rodríguez, 527 F.3d at 229; accord Arrelucea-Zamudio, 581 F.3d at 151. In effect, while Congress intended to create room for courts in fast-track jurisdictions to treat defendants in a certain manner, it did nothing to prohibit judges in non-fast-track districts from treating defendants the same way.

Second, to the extent that Congress impliedly communicated that the disparity was warranted, see, e.g., Gomez-Herrera, 523 F.3d at 562, that fact does not distinguish this case from Kimbrough. There, the government had argued that by enshrining the 100-to-1 ratio in the mandatory minimum sentences of the Anti Drug Abuse Act of 1986, Congress had implicitly endorsed the disparity in the Guidelines. The Court responded that “[t]he statute says nothing about the appropriate sentence within [the specified sentencing range], and we decline to read any implicit directive into that congressional silence.” Kimbrough, 552 U.S. at 103. The Court also rejected the contention that Congress had endorsed the Guidelines’ disparity by rebuffing a 1995 proposal by the Sentencing Commission to replace the 100-to-1 ratio with a 1-to-1 ratio. Id. at 105–06. In rejecting these arguments, “Kimbrough made pellucid that when Congress exercises its power to bar district courts from using a particular sentencing rationale, it does so by the use of unequivocal terminology.” Rodríguez, 527 F.3d at 230.

Third, even if Congress could be said to have endorsed some disparity between defendants in fast-track and non-fast-track districts, it has not endorsed the further disparity that is created by charge bargaining. In some districts, instead of (or in addition to) moving for a downward departure of up to four offense levels, prosecutors will dismiss certain charges in exchange for a guilty plea. See Arrelucea-Zamudio, 581 F.3d at 152 (describing these “alternative district-wide, early-disposition programs [that] operate outside the bounds of not only the Protect Act, but also Guidelines § 5K3.1”). Surely, judges in districts in which such charge bargaining is not routine for illegal reentry defendants would be justified in imposing reduced sentences based on the disparity created by this prosecutorial practice.

(paragraph breaks added).

The Supreme Court's gonna have to take this up soon. The split is entrenched, the arguments on both sides well-developed, and the two circuits with probably the largest volume of illegal reentry cases have weighed in (and if they're wrong, that means that—five years after Booker and three years after Kimbrough—potentially thousands of defendants aren't getting sentences that comply with 18 U.S.C. § 3553(a)).

Two important holdings in this appeal of an illegal reentry sentence. But first, the facts:

Andino had a prior Texas conviction for injury to a child (Tex. Penal Code § 22.04), for which the PSR hit him with a 16-level crime-of-violence enhancement. At sentencing, he asked for a downward variance on the basis that he thought he was only facing a 4-level any-other-felony enhancement for that offense. Defense counsel stated:

The predicate offense in this case was injury to a child. . . . There is case law that says that injury to a child by omission is not a crime of violence and would only garner a 4-level enhancement.

However, there is case law—[p]articularly, I’m looking here at Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir. 2007], which finds that if there—the injury to a child stems from an intentional act, then it definitely is a crime of violence. Your Honor, . . . my client’s position throughout has been that [the injury] was the result of an accident.

Now, the fact remains that he pled to the offense as charged in the indictment which charged an intentional offense. . . .

Andino got a 60-month within-Guidelines sentence, and challenged the 16-level enhancement on appeal.

Which brings us to the First Important Thing: The Government argued that defense counsel's statements at sentencing concerning the enhancement constituted waiver of the issue. In United States v. Fernandez-Cusco, the Fifth Circuit "concluded that [similar] statements did not rise to the level of waiver, but 'arguably' constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error." Which is what the court did here, too.

Although we recognize the factual similarity here—Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper—he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. Accordingly, we review for plain error.

(citations omitted).

And plain error it was, which is Important Thing 2d. Defense counsel was mistaken about Perez-Munoz because that case involved the COV definition in 18 U.S.C. § 16(b), which is different from the definition applicable to guideline §2L1.2's 16-level enhancement. Section 16(b) reaches felony offenses that involve a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Guideline §2L1.2's COV definition, by contrast, asks whether force is an element of the offense. Not the same question, so Perez-Munoz isn't controlling. (Yes, the §2L1.2 definition also lists specific offenses that are crimes of violence regardless of whether they have a force element, but injury to a child isn't one of them.)

Also not controlling is United States v. Gracia-Cantu, which held that Texas injury to a child by omission is not a COV under 18 U.S.C. § 16(a). Although § 16(a) is identical to the force clause of §2L1.2's COV definition, Andino was convicted of injury by act, not omission.

So what is controlling? United States v. Vargas-Duran and United States v. Calderon-Pena. They held that an offense must necessarily require physical force to fall within the force clause, and that if any set of facts would support a conviction without proof of force, then force isn't an element of the offense. "For instance, an offense under [the Texas injury-to-a-child statute] can be committed by intentional act without the use of physical force by putting poison or another harmful substance in a child’s food or drink." So it's not a 16-level COV.

Tuesday, July 13, 2010

Birth In Philippines During Territorial Period Does Not Confer U.S. Citizenship

Deriviative citizenship and a categorical approach/aggravated felony issue in the same opinion? You'll want to pay attention to this one.

Nolos asserts that he derives United States citizenship from his parents, who he claims became United States citizens at birth because they were born in the Philippines when the country was a United States territory. We have not previously decided this question. However, the Second, Third and Ninth Circuits have held that birth in the Philippines at a time when the country was a territory of the United States does not constitute birth “in the United States” under the Citizenship Clause, and thus did not give rise to United States citizenship. The courts of appeals explained that the term “United States” as it is used in the Citizenship Clause of the Fourteenth Amendment did not, without more, include “United States territories simply because the territories [were] ‘subject to the jurisdiction’ or ‘within the dominion’ of the United States.” In reaching their holdings, the courts found guidance from the Supreme Court’s Insular Cases jurisprudence on the territorial scope of the term “the United States” as used in the Citizenship Clause of the Fourteenth Amendment. The Insular Cases were a series of Supreme Court decisions that dealt with various challenges to duties on shipments from Puerto Rico to the United States mainland.

(cites omitted). Against this case law, Nolos,

relying on United States v. Wong Kim Ark, argue[d] that the Fourteenth Amendment codified the principles of the English common law that birth within a sovereign’s territory confers citizenship. On that basis, Nolos urges that his parents acquired United States citizenship at birth because the Philippines were under the dominion and control of the United States at the time of their births. But as have the Ninth and the Second Circuits before us, we decline to give Wong Kim Ark such an expansive interpretation. As the Second Circuit explained, the question of the territorial scope of the Citizenship Clause of the Fourteenth Amendment was not before the Court in Wong Kim Ark[, which addressed whether a child born in San Francisco to alien parents was a U.S. citizen.]

(cites omitted). The court concluded:

[W]e find the reasoning of our sister circuits persuasive and hold that “persons born in the Philippines during its status as a United States territory were not ‘born . . . in the United States’ under the Fourteenth Amendment.” Accordingly, given that Nolos’s parents did not acquire United States citizenship by virtue of their birth in the Philippines when it was a United States territory, Nolos could not have derived United States citizenship from them and is therefore removable if he is found to have been convicted of an aggravated felony.

As for the aggravated felony, Nolos had been convicted of theft under a divisible Nevada statute that reached both generic and non-generic theft. His information alleged one of the alternatives that was generic theft.

Nolos appears to suggest that the guilty plea agreement fails to indicate the prong of the statute to which he had pleaded guilty. But it states that Nolos pleaded guilty to theft under Nevada Revised Statutes § 205.0832, “as more fully alleged in the charging document.” Therefore, it incorporates by reference the more specific description of Nolos’s offense in the information . . . .

Here we have another object lesson in the perils of admitting—explicitly or implicitly—the accuracy of the PSR.

Recall that, under the illegal reentry statute, 8 U.S.C. § 1326, enhanced penalties apply if an alien was deported after having been convicted of a qualifying offense. Which brings us to Mr. Velasquez. He'd been deported twice before, in 2004 and 2008. He had also been convicted of felony domestic assault in-between the two deportations. At his rearraignment on the illegal reentry charge, he agreed with the prosecutor's statement of the factual basis for his guilty plea, which identified only the earlier of the two deportations. The PSR of course listed both of them, and hit Velasquez with an 8-level bump for the assault conviction. That also elevated the statutory maximum from the 2 years allowed under § 1326(a) to the 20 years authorized under § 1326(b)(2).

At his sentencing, Velasquez-Torrez affirmed that he had received and read the PSR. Through counsel, Velasquez-Torrez stated that there were no mistakes in the report, although he “remained silent on Paragraph 28,” which contained a narrative discussing the facts of his prior assault conviction.

Velasquez got 37 months, and appealed. He argued that his sentence could not exceed 2 years because the 2008 deportation was not proved beyond a reasonable doubt, just like in Rojas-Luna, where the defendant prevailed on this issue. And also like Rojas-Luna, Velasquez faced plain-error review. But unlike Rojas-Luna, Velasquez could not show plain error. Why the difference?

In Rojas-Luna, the defendant pleaded guilty to reentering the United States illegally. The factual basis for the charge was that Rojas-Luna had been deported in 1988 and had reentered the United States in 2006. No mention was made of a prior conviction. The subsequent PSR, however, noted that Rojas-Luna was convicted of aggravated assault in 2003 and was removed in 2006. Because Rojas-Luna had been convicted and subsequently removed, the district court enhanced his sentence under § 1326(b)(2). On appeal, we held that the district court’s reliance on the 2006 removal, when this fact had not been proven to a jury or admitted by Rojas-Luna, was plain error.

In Ramirez, we dealt with facts that differed slightly, but materially, and came to a different conclusion. Ramirez pleaded guilty to illegal reentry at his rearraignment. The indictment and factual basis for his plea did not specify the date of his removal. After his plea, the PSR reflected that Ramirez had been convicted of aggravated assault in 2003 and deported in 2005. Relying on the conviction and deportation mentioned in the PSR, the district court increased Ramirez’s sentence beyond the statutory maximum contained in § 1326(a). On appeal, Ramirez argued that the district court’s reliance on the 2005 removal was plain error under Rojas-Luna. We disagreed. We noted that, whereas in Rojas-Luna the defendant had not admitted to the relevant deportation, Ramirez and his counsel “affirmed specifically that they had read the PSR, reviewed it for legal and factual accuracy, and made no objections to it.” While reliance on a PSR alone to establish the fact of a defendant’s removal is improper, “reliance on a defendant’s admission of facts that are contained in the PSR is permissible.” Because Ramirez implicitly admitted the accuracy of the PSR, the district court did not plainly err in relying on the facts contained therein.

In this case, the district court relied on Velasquez-Torrez’s 2008 deportation to increase his sentence beyond the statutory maximum. While Velasquez-Torrez’s 2008 deportation was not proven to a jury, it was described in the PSR. At his sentencing, Velasquez-Torrez stated that he had received and read the PSR. Beyond “remaining silent” on a section of the PSR discussing the facts of his prior assault conviction, Velasquez-Torrez through counsel affirmed that the PSR contained no mistakes. Just as in Ramirez, Velasquez-Torrez agreed to the accuracy of the PSR. Having admitted the fact of his deportation, Velasquez-Torrez cannot now argue that the district court improperly relied on that deportation. Therefore, the district court did not commit error, much less plain error, when it enhanced Velasquez-Torrez’s sentence pursuant to § 1326(b)(2).

Now there's actually a little more to Ramirez than the implicit admission of the PSR's accuracy. In Ramirez,

[T]he PSR incorporated ICE records provided to the probation office by the government and set forth the details of Ramirez's three prior removals in 1998, 2002, and 2005. The ICE records were provided to Ramirez by the government. In addition, Ramirez and his counsel affirmed specifically that they had read the PSR, reviewed it for legal and factual accuracy, and made no objections to it.

Distinguishing that scenario from Rojas-Luna, Ramirez said,

In Rojas-Luna, this court reached the conclusion that there was plain error because “there is no evidence in the record that Rojas-Luna ever agreed to the accuracy of the PSR.” In addition the panel noted that the only evidence of the defendant’s prior removal was the unsupported statement in the PSR that he was removed in 2006. In this case, in contrast, there is evidence that Ramirez agreed to the accuracy of the PSR and the facts of Ramirez’s prior removals in the PSR were based on ICE documentation of Ramirez’s prior deportations, which documents were provided to the defendant.

So what to take away from all this? Be very careful about conceding the accuracy of the PSR, even implicitly. Because even if Ramirez rested on more than an implicit admission—and putting aside the question whether Ramirez's and his counsel's statements regarding the PSR really amounted to an admission, implicit or otherwise—the court appears to read the case as if the admission alone was enough to defeat plain error review.